African-American voters receive a phone message implying that they are not registered to vote. Others hear "an almost threatening male voice," a "fake New York accent," factual distortions about legislation, false endorsements from controversial groups, calls promoting one candidate claiming to be from his opponent, and a constant barrage of annoying phone calls designed to make voters think a different candidate was sponsoring them. These messages were delivered through automated political telephone calls, also known as robocalls. Robocalls are cheap and efficient--one can deliver a pre-recorded message through 100,000 automated phone calls in one hour for only $2000. Consequently, robocalls have become one of the most-used political campaign tools. This Note calls for a national regulation of robocalls that allows for their continued use, but attempts to curb specific abuses. There are a variety of problems and benefits associated with robocalls. Beyond being used to deceive and abuse voters, robocalls are also uniquely annoying and invasive. The federal regulatory regime currently excludes political robocalls from most telemarketing regulations. Unsurprisingly, Congress and many states are considering banning or regulating robocalls because of the associated problems with its current use. At the same time, robocalls allow candidates to communicate with voters cost effectively, provide a cheap way to "get out the vote", free up staff and volunteer time, and open up opportunities for under-funded candidates. Robocalls are also widely used in mainstream campaigns. Political speech is core speech and, even where state law bans or regulates robocalls, few states are willing to enforce the laws against political campaigns, "partly out of fear that they violate free speech protections." The current regulation has not only failed to stop false or misleading calls, but it has also exposed national campaigns to unintentional violations of state law and patchwork state regulation. Without a uniform approach, compliance with robocall regulation will remain to be difficult for candidates and campaign groups. Accordingly, this Note proposes a national regulation of robocalls that pre-empts state laws, restricts the time of day of calls, and focuses primarily on disclosure. This regulation would address the problems that robocalls present while preserving their beneficial uses and complying with First Amendment requirements. This Note examines the good (campaign messaging and polling), the bad (nasty, negative campaigning), and the ugly (vote suppression) uses of robocalls in Part I. Part II discusses the existing regulatory structure for robocalls. Part III examines proposals to amend the structure and problems with those proposals. Part IV examines the First Amendment concerns in regulating robocalls. Finally, Part V recognizes the need for a national solution to protect political speech by preventing patchwork state regulation, and proposes a solution to support the non-abusive use of political robocalls.
Jason C. Miller,
Regulating Robocalls: Are Automated Calls the Sound of, or a Threat to, Democracy,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol16/iss1/6